INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, dated as of April 20, 2000 (the
"Agreement"), by and between Complete Business Solutions, Inc., a Michigan
corporation (the "Company"), CDR-COOKIE Acquisition, L.L.C., a Delaware limited
liability company ("CDR-Cookie VI"), CDR-COOKIE, VI-A, a Delaware limited
liability company ("CDR-Cookie VI-A", and together with CDR-Cookie VI, the
"Purchasers"), and Xxxxxxx, Dublier & Rice, Inc., a Delaware corporation
("CD&R").
WHEREAS, the Purchasers are (i) initially purchasing (the "Initial
Stock Purchase") from the Company (x) an aggregate of 100,000 shares of its
Series A Participating Convertible Preferred Stock, no par value (the "Preferred
Stock"), and (y) warrants to purchase an aggregate of 3 million shares of the
common stock, no par value, of the Company (the "Common Stock") at an exercise
price of $25 per share (the "25 Warrant"), and (ii) following receipt of
Shareholder Approval (as defined below), are purchasing (the "Subsequent Stock
Purchase" and together with the Initial Stock Purchase, the "Company Stock
Purchase") (x) an aggregate of an additional 100,000 shares of Preferred Stock
and (y) additional 25 Warrants to purchase 500,000 shares of Common Stock and
warrants to purchase an aggregate of 1.8 million shares of Common Stock at an
exercise price of $31 per share, (the "31 Warrant" and, together with the 25
Warrant, the "Warrants"), in each case pursuant to the Stock Purchase Agreement,
dated as of March 17, 2000 between the Company and the Purchasers (the "Stock
Purchase Agreement");
WHEREAS, in connection with the solicitation by the Company of proxies
of its stockholders to vote in favor of the Subsequent Stock Purchase (the
"Shareholder Approval"), the Company shall prepare and file with the Securities
and Exchange Commission (the "Commission") a proxy statement on Schedule 14A (as
the same may be amended from time to time, the "Proxy Statement");
WHEREAS, immediately following the Initial Stock Purchase, the
Purchasers will be significant stockholders of the Company and persons appointed
by the Purchasers will serve on the Board of Directors of the Company;
WHEREAS, the sole member of CDR-Cookie VI is Xxxxxxx, Dubilier & Rice
Fund VI Limited Partnership, a Cayman Islands exempted limited partnership
("CD&R Fund VI"), and the sole member of CDR-Cookie VI-A is Xxxxxxx, Dubilier &
Rice Fund VI-A Limited Partnership, a Cayman Islands exempted limited
partnership (together with CD&R Fund VI and any other investment vehicle managed
by CD&R, the "CD&R Fund"), and the CD&R Fund is managed by CD&R, and the general
partner of the CD&R Fund is CD&R Associates VI Limited Partnership, a Cayman
Islands exempted limited partnership (together
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with any general partner of any other investment vehicle managed by CD&R, "CD&R
Associates"), and the general partner of CD&R Associates is CD&R Investment
Associates VI, Inc., a Cayman Islands exempted company (together with any Person
that may become a general partner of CD&R Associates in the future, "Associates
Inc.");
WHEREAS, this Agreement is being entered into pursuant to the Stock
Purchase Agreement;
WHEREAS, the Purchaser has collaborated with the Company in connection
with the structuring of the Company Stock Purchase;
WHEREAS, the Company has entered into a Consulting Agreement, dated as
of March 17, 2000, by and between the Company and CD&R (the "Consulting
Agreement");
WHEREAS, the Company or one or more of its Subsidiaries from time to
time in the future (a) may offer and sell or cause to be offered and sold equity
or debt securities (such offerings, collectively, the "Subsequent Offerings"),
including without limitation (i) offerings of Common Stock or other securities
and/or options to purchase such Common Stock or other securities to third
parties in connection with acquisitions, financings and other corporate
transactions, or to employees, directors, managers and consultants of and to the
Company, and (ii) offerings of debt securities and (b) may repurchase, redeem or
otherwise acquire securities of the Company or one or more of its Subsidiaries
of any of the foregoing (any such repurchase or redemption being referred to
herein as a "Redemption");
WHEREAS, the parties hereto recognize that claims might be made against
and liabilities incurred by CD&R, the Purchasers or related Persons or
Affiliates, under applicable securities laws or otherwise, in connection with
the Company Stock Purchase or any Securities Offerings, or relating to other
actions or omissions of or by the Company, or relating to the provision by CD&R
or related Persons or Affiliates of services to the Company and its Subsidiaries
(including serving on the Board of Directors of the Company), and the parties
hereto accordingly wish to provide for CD&R, the Purchaser and related Persons
and Affiliates to be indemnified in respect of any such claims and liabilities,
subject to the terms and conditions hereof; and
WHEREAS, the parties hereto recognize that claims might be made against
and liabilities incurred by directors and officers of the Company or its
Subsidiaries in connection with their acting in such capacity, and accordingly
wish to provide for such directors and officers to be indemnified to the fullest
extent permitted by law in respect of any such claims and liabilities;
NOW, THEREFORE, in consideration of the premises and the respective
agreements hereinafter set forth and the mutual benefits to be derived herefrom,
the parties hereto hereby agree as follows:
1. Certain Definitions.
"Affiliate" of a Person means a Person that directly or indirectly
through one or more intermediaries, controls, is controlled by, or is under
common control with, the first
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Person, and with respect to a natural person shall include any child, stepchild,
grandchild, parent, stepparent, spouse, sibling, mother-in-law, father-in-law,
son-in-law, daughter-in-law, brother-in-law or sister-in-law, and shall include
adoptive relationships. "Control" (including the terms "controlled by" and
"under common control with") means the possession, directly or indirectly, of
the power to direct or cause the direction of the management policies of a
Person, whether through the ownership of voting securities, by contract or
credit arrangement, as trustee or executor, or otherwise.
"Claim" means, with respect to any Indemnitee, any claim against such
Indemnitee involving any Obligation with respect to which such Indemnitee may be
entitled to be defended and indemnified by the Company under this Agreement.
"Indemnitee" means each of CD&R, the Purchasers, the CD&R Fund, CD&R
Associates, Associates Inc., their respective successors and permitted assigns,
and each of their respective directors, officers, partners, members, managers,
employees, agents, advisors, representatives and controlling persons (within the
meaning of the Securities Act of 1933, as amended (the "Securities Act")).
"Obligations" means, collectively, any and all claims, obligations,
liabilities, causes of action, actions, suits, proceedings, investigations,
judgments, decrees, losses, damages, fees, costs and expenses (including,
without limitation, interest, penalties and fees and disbursements of attorneys
and accountants), in each case whether incurred, arising or existing with
respect to third parties or otherwise at any time or from time to time, provided
that the term "Obligations" shall not include losses and damages and related
costs and expenses incurred (a) with respect to the subject matter of the Stock
Purchase Agreement, (b) with respect to such matters that would be the subject
of indemnification pursuant to Section 5 of the Consulting Agreement but for any
limitations and qualifications on such indemnification contained in the
Consulting Agreement, (c) by any Indemnitee, in its capacity as a shareholder of
the Company, upon its disposition of Common Stock, Preferred Stock or Warrants
or otherwise resulting solely from and limited to any diminution in value of
Common Stock, Preferred Stock or Warrants held by such Indemnitee, (d) by any
Indemnitee as a result of any indemnity payment required to be made by such
Indemnitee pursuant to Article X of the Stock Purchase Agreement, (e) by any
Indemnitee as a result of any untrue statement or alleged untrue statement of a
material fact contained in any proxy statement (including, without limitation,
the Proxy Statement) registration statement, prospectus or preliminary
prospectus, or any amendment thereof or supplement thereto, insofar as the same
result from or are contained in any information furnished in writing to the
Company by such Indemnitee and stated to be specifically for use therein or from
such Indemnitee's failure to deliver a copy of the registration statement,
prospectus or preliminary prospectus or any amendments thereof or supplements
thereto, or (f) by any Indemnitee, in its capacity as a shareholder of the
Company, arising out of a violation of Section 16(b) of the Securities Exchange
Act, as amended (the "Exchange Act").
"Person" means any individual, partnership, joint venture, corporation,
limited liability company, trust, unincorporated organization or other entity.
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"Related Document" means any agreement, certificate, instrument or
other document to which the Company or any Subsidiary may be a party or by which
it or any of its properties or assets may be bound or affected from time to time
relating in any way to the Company Stock Purchase, any Securities Offering or
any debt financing transaction, or any of the transactions contemplated thereby,
including without limitation, in each case as the same may be amended, modified,
waived or supplemented from time to time, (A) any registration statement (and
any prospectus, preliminary or otherwise, related thereto), filed by or on
behalf of the Company or any Subsidiary with the Commission in connection with
any Securities Offering, including all exhibits, financial statements and
schedules appended thereto, and any submissions to the Commission in connection
therewith, (B) any private placement or offering memorandum or circular, or
other information or materials distributed by or on behalf of the Company or any
Subsidiary or any placement agent or underwriter in connection with any
Securities Offering or debt financing transaction, (C) any federal, state or
foreign securities law or other governmental or regulatory filings or
applications made in connection with any Securities Offering, the Company Stock
Purchase, or any of the transactions contemplated thereby, (D) any
dealer-manager, underwriting, subscription, purchase, stockholders, option or
registration rights agreement or plan entered into or adopted by the Company or
any Subsidiary in connection with the Company Stock Purchase, any Securities
Offering, or any debt financing transaction, and (E) any quarterly, annual or
current reports filed by the Company or any Subsidiary with the Commission or
any prospectus, proxy statement or transaction statements, including the Proxy
Statement, filed by or on behalf of the Company, any Subsidiary or any
Indemnitee with the Commission in connection with the Company Stock Purchase or
any transaction contemplated thereby, including all exhibits, financial
statements and schedules appended thereto, and any submission to the Commission
in connection therewith.
"Securities Offerings" means any Subsequent Offering and any
Redemptions.
2. Indemnification. (a) The Company agrees to indemnify, defend and
hold harmless each Indemnitee:
(i) from and against any and all Obligations, in any way resulting
from, arising out of or in connection with, based upon or relating to
(A) the Securities Act, the Exchange Act, or any other applicable
securities or other laws, in connection with the Company Stock
Purchase, any Securities Offering, any Related Document or any of the
transactions contemplated thereby, (B) any other action or failure to
act of the Company or any of its Subsidiaries; whether such action or
failure has occurred or is yet to occur, or (C) except to the extent
that any such Obligation is found in a final judgment by a court of
competent jurisdiction to have resulted from the gross negligence or
intentional misconduct of any of the Indemnitees, the performance by
CD&R of management consulting, monitoring, financial advisory or other
services for the Company or any Subsidiary (whether performed prior to
the date hereof, hereafter, pursuant to the Consulting Agreement or
otherwise); and
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(ii) to the fullest extent permitted by applicable law, from
and against any and all Obligations in any way resulting from, arising
out of or in connection with, based upon or relating to (A) the fact
that such Indemnitee is or was a shareholder, director or officer of
the Company or a Subsidiary or is or was serving at the request of the
Company as a director, officer, employee or agent of or advisor or
consultant to another corporation, limited liability company,
partnership, joint venture, trust or other enterprise, or (B) any
breach or alleged breach by such Indemnitee of his or her fiduciary
duty as a director or officer of the Company or a Subsidiary.
in each case including but not limited to any and all reasonable fees, costs and
expenses (including without limitation reasonable fees and disbursements of
attorneys) incurred by or on behalf of any Indemnitee in asserting, exercising
or enforcing any of its rights, powers, privileges or remedies in respect of
this Agreement or the Consulting Agreement. If any Indemnitee is ineligible for
indemnification hereunder by reason of its gross negligence or intentional
misconduct none of its Affiliates or Related Persons shall be eligible for
indemnification hereunder.
(b) Without in any way limiting the foregoing Section 2(a), the Company
agrees to indemnify, defend and hold harmless each Indemnitee from and against
any and all Obligations resulting from, arising out of or in connection with,
based upon or relating to liabilities under the Securities Act, the Exchange Act
or any other applicable securities or other laws, rules or regulations in
connection with (i) the inaccuracy or breach of or default under any
representation, warranty, covenant or agreement in any Related Document, (ii)
any untrue statement or alleged untrue statement of a material fact contained in
any Related Document or (iii) any omission or alleged omission to state in any
Related Document a material fact required to be stated therein or necessary to
make the statements therein not misleading.
(c) Notwithstanding the foregoing provisions of this Section 2, the
Company shall not be obligated to indemnify any Indemnitee from and against any
such Obligation to the extent that such Obligation arises out of or is based
upon an untrue statement or omission made in a Related Document in reliance upon
and in conformity with written information furnished by any of the Indemnitees
to the Company expressly for use in the preparation of such Related Document.
3. Contribution. (a) Except to the extent that Section 3(b) is
applicable, if for any reason the indemnity provided for in Section 2(a) is
unavailable or is insufficient to hold harmless any Indemnitee from any of the
Obligations covered by such indemnity, then the Company shall contribute to the
amount paid or payable by such Indemnitee as a result of such Obligation in such
proportion as is appropriate to reflect (i) the relative fault of the Company
and the Subsidiaries, on the one hand, and the Indemnitees, on the other, in
connection with the state of facts giving rise to such Obligation, (ii) if such
Obligation results from, arises out of, is based upon or relates to the Company
Stock Purchase or any Securities Offering, the relative benefits received by the
Company and the Subsidiaries, on the one hand, and the Indemnitees, on the
other, from the Company
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Stock Purchase or such Securities Offering and (iii) if required by applicable
law, any other relevant equitable considerations.
(a) If for any reason the indemnity specifically provided for in
Section 2(b) is unavailable or is insufficient to hold harmless any Indemnitee
from any of the Obligations covered by such indemnity, then the Company shall
contribute to the amount paid or payable by the Indemnitees as a result of such
Obligation in such proportion as is appropriate to reflect (i) the relative
fault of the Company and the Subsidiaries, on the one hand, and the Indemnitees,
on the other, in connection with the information contained in or omitted from
any Related Document, which inclusion or omission resulted in the inaccuracy or
breach of or default under any representation, warranty, covenant or agreement
therein, or which information is or is alleged to be untrue, required to be
stated therein or necessary to make the statements therein not misleading, (ii)
the relative benefits received by the Company and the Subsidiaries, on the one
hand, and the Indemnitees, on the other, from the Company Stock Purchase or any
Securities Offering and (iii) if required by applicable law, any other relevant
equitable considerations.
(b) For purposes of Section 3(a), the relative fault of the Company and
the Subsidiaries, on the one hand, and of the Indemnitees, on the other, shall
be determined by reference to, among other things, their respective relative
intent, knowledge, access to information and opportunity to correct the state of
facts giving rise to such Obligation. For purposes of Section 3(b), the relative
fault of the Company and the Subsidiaries on the one hand, and of the
Indemnitees, on the other, shall be determined by reference to, among other
things, (i) whether the included or omitted information relates to information
supplied by the Company or the Subsidiaries on the one hand, or by the
Indemnitees, on the other, and (ii) their respective relative intent, knowledge,
access to information and opportunity to correct such inaccuracy, breach,
default, untrue or alleged untrue statement, or omission or alleged omission.
For purposes of Section 3(a) or 3(b), the relative benefits received by the
Company and the Subsidiaries, on the one hand, and the Indemnitees, on the
other, shall be determined by weighing the direct monetary proceeds to the
Company and the Subsidiaries, on the one hand, and the Indemnitees, on the
other, from such Securities Offering.
(c) The parties hereto acknowledge and agree that it would not be just
and equitable if contributions pursuant to Section 3(a) or 3(b) were determined
by pro rata allocation or by any other method of allocation that does not take
into account the equitable considerations referred to in such respective
Section. The Company shall not be liable under Section 3(a) or 3(b), as
applicable, for contribution to the amount paid or payable by any Indemnitee
except to the extent and under such circumstances as the Company would have been
liable to indemnify, defend and hold harmless such Indemnitee under the
corresponding Section 2(a) or 2(b) (in either case as interpreted by Section
2(c)), as applicable, if such indemnity were enforceable under applicable law.
No Indemnitee shall be entitled to contribution from the Company with respect to
any Obligation covered by the indemnity specifically provided for in Section
2(b) in the event that such Indemnitee is finally determined to be guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) in connection with such Obligation and the Company is not guilty
of such fraudulent misrepresentation.
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4. Indemnification Procedures. (a) Whenever any Indemnitee shall have
actual knowledge of the reasonable likelihood of the assertion of a Claim, CD&R
(acting on its own behalf or, if requested by any such Indemnitee other than
itself, on behalf of such Indemnitee) or such Indemnitee shall notify the
Company in writing of the Claim (the "Notice of Claim") with reasonable
promptness after such Indemnitee has such knowledge relating to such Claim and
has notified CD&R thereof. The Notice of Claim shall specify all material facts
known to CD&R (or if given by such Indemnitee, such Indemnitee) that may give
rise to such Claim and the monetary amount or an estimate of the monetary amount
of the Obligation involved if CD&R (or if given by such Indemnitee, such
Indemnitee) has knowledge of such amount or a reasonable basis for making such
an estimate. The failure of CD&R or such Indemnitee to give such Notice of Claim
shall not relieve the Company of its indemnification obligations under this
Agreement except to the extent that such omission results in a failure of actual
notice to the Company and the Company is materially injured as a result of the
failure to give such Notice of Claim. CD&R or such Indemnitee shall permit the
Company (at the expense of the Company) to assume the defense of such Claim with
counsel of its own choosing reasonably satisfactory both to CD&R and to any
Indemnitee that, in the exercise of such Indemnitee's good faith judgement,
reasonably determines that the Claim presents an actual or potential conflict of
interest with CD&R. CD&R may participate in such defense with counsel of CD&R's
choosing at the expense of the Company. If in the exercise of their good faith
judgment any one or more other Indemnitees reasonably determines that the Claim
presents an actual or potential conflict of interest with CD&R and the counsel
chosen by the Company and approved by CD&R pursuant to the previous sentence is
not satisfactory to such Indemnitee or Indemnitees, such Indemnitee or
Indemnitees may participate in the defense of the Claim with one counsel for all
such Indemnitees, at the choosing of such Indemnitees and at the expense of the
Company. In the event that the Company does not undertake the defense of the
Claim within a reasonable time after CD&R or another Indemnitee has given the
Notice of Claim, or in the event that CD&R shall in good faith determine that it
or another Indemnitee has available to it one or more defenses or counterclaims
that are inconsistent with one or more of those that may be available to the
Company in respect of such Claim or any litigation relating thereto, CD&R may,
at the expense of the Company and after giving notice to the Company of such
action, undertake the defense of the Claim and compromise or settle the Claim,
all for the account of and at the risk of the Company, provided that if the
Indemnitee does so take over and assume control, the Indemnitee shall not settle
such claim or litigation without the written consent of the Company, such
consent not to be unreasonably withheld. In the defense of any Claim, the
Company shall not, except with the consent of CD&R (or, in the case of any entry
of any judgment or settlement that is binding on any other Indemnitee, such
other Indemnitee), consent to entry of any judgment or enter into any settlement
that includes any injunctive or other non-monetary relief, or that does not
include as an unconditional term thereof the giving by the person or persons
asserting such Claim to such Indemnitee of a release from all liability with
respect to such Claim. In each case, CD&R and each other Indemnitee seeking
indemnification hereunder will cooperate with the Company, so long as the
Company is conducting the defense of the Claim, in the preparation for and the
prosecution of the defense of such Claim, including making available evidence
within the
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control of CD&R or such Indemnitee, as the case may be, and persons needed as
witnesses who are employed by CD&R or such Indemnitee, as the case may be, in
each case as reasonably needed for such defense and at cost, which cost, to the
extent reasonably incurred, shall be paid by the Company.
(b) The Company hereby agrees to advance reasonable costs and expenses,
including reasonable attorney's fees, incurred by CD&R (acting on its own behalf
or, if requested by any such Indemnitee other than itself, on behalf of such
Indemnitee) or any Indemnitee in defending any Claim in advance of the final
disposition of such Claim upon receipt of an undertaking by or on behalf of CD&R
or such Indemnitee to repay amounts so advanced if it shall ultimately be
determined that CD&R or such Indemnitee is not entitled to be indemnified by the
Company under this Agreement or otherwise.
(c) Each Indemnitee shall promptly notify the Company in writing of the
amount of any Claim actually paid by such Indemnitee (the "Notice of Payment").
The amount of any Claim actually paid by an Indemnitee shall bear simple
interest at the rate equal to the Chase Manhattan Bank's prime rate as of the
date of such payment plus 2% per annum, from the date the Company receives the
Notice of Payment to the date on which the Company shall repay the amount of
such Claim plus interest thereon to such Indemnitee.
5. Certain Covenants; Other Indemnitees. The rights of each Indemnitee
to be indemnified under any other agreement, document, certificate or instrument
or applicable law are independent of and in addition to any rights of such
Indemnitee to be indemnified under this Agreement. The rights of each Indemnitee
and the obligations of the Company hereunder shall remain in full force and
effect regardless of any investigation made by or on behalf of such Indemnitee.
The Company shall implement and maintain in full force and effect any and all
corporate articles or charter and by-law provisions that may be necessary or
appropriate to enable them to carry out their obligations hereunder to the
fullest extent permitted by applicable corporate law, including without
limitation a provision of its articles or certificate of incorporation
eliminating liability of a director for breach of fiduciary duty to the fullest
extent permitted by applicable corporate law, as it may be amended from time to
time.
6. Third-Party Beneficiaries. All Indemnitees not the signatories to
this Agreement are intended third-party beneficiaries of this Agreement.
7. Severability. If any provision or provisions of this Agreement shall
be held to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof shall not in any way be
affected or impaired thereby.
8. Notices. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if (a) delivered
personally, (b) mailed, certified or registered mail with postage prepaid, (c)
sent by next-day or overnight mail or delivery or (d) sent by fax, with a copy
sent by (a), (b), or (c) above, or telegram, as follows:
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(i) if to CD&R:
Xxxxxxx, Dubilier & Rice, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Telephone: (000) 000-0000
Attention:
with a copy to:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
(ii) if to the Company:
Fax:
Telephone:
Attention:
with a copy to:
Xxxxx Xxxxxxxxxx, LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
and with a copy to:
Butzel Long
000 Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxx Xxxxxx, Esq.
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or, in each case, at such other address as may be specified in writing to the
other parties hereto.
All such notices, requests, demands, waivers and other communications
shall be deemed to have been received (w) if by personal delivery on the day
after such delivery, (x) if by certified or registered mail, on the seventh
business day after the mailing thereof, (y) if by next-day or overnight mail or
delivery, on the day delivered, or (z) if by telecopy or telegram, on the next
day following the day on which such telecopy or telegram was sent, provided that
a copy is also sent by certified or registered mail.
9. Entire Agreement. Except as contained in Article X of the Stock
Purchase Agreement, this Agreement (a) contains the complete and entire
understanding and agreement of the parties with respect to the subject matter
hereof and (b) supersedes all prior and contemporaneous understandings,
conditions and agreements, oral or written, express or implied, in respect of
the subject matter hereof.
10. Headings. The headings contained in this Agreement are for purposes
of convenience only and shall not affect the meaning or interpretation of this
Agreement.
11. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and all of which shall
together constitute one and the same instrument.
12. Binding Effect; Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties to this Agreement and their respective
successors and permitted assigns and to each Indemnitee, provided that no party
may assign any of its rights or obligations under this Agreement without the
express written consent of the other party hereto. Subject to Section 6, this
Agreement is not intended to confer any right or remedy upon any person other
than the parties to this Agreement and their respective successors and permitted
assigns and each Indemnitee.
13. Governing Law. THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS
INCLUDING AS TO VALIDITY, INTERPRETATIONS AND EFFECTS BY THE LAWS OF THE STATE
OF NEW YORK, WITHOUT GIVING EFFECT TO ITS PRINCIPLES OR RULES OF CONFLICT OF
LAWS TO THE EXTENT SUCH PRINCIPLES OR RULES WOULD REQUIRE OR PERMIT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW
YORK AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA, IN EACH CASE
LOCATED IN THE STATE OF DELAWARE, SOLELY IN RESPECT OF THE INTERPRETATION AND
ENFORCEMENT OF THE PROVISIONS OF THIS AGREEMENT, AND HEREBY WAIVES, AND AGREES
NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING FOR THE
INTERPRETATION OR ENFORCEMENT HEREOF, THAT IT IS NOT SUBJECT THERETO OR THAT
SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE IN
SUCH COURTS OR THAT THE VENUE THEREOF MAY NOT BE APPROPRIATE
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OR THAT THIS AGREEMENT MAY NOT BE ENFORCED IN OR BY SUCH COURTS, AND THE PARTIES
HERETO IRREVOCABLY AGREE THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR
PROCEEDING SHALL BE HEARD AND DETERMINED IN SUCH A DELAWARE STATE OR FEDERAL
COURT. THE PARTIES HERETO HEREBY CONSENT TO AND GRANT ANY SUCH COURT
JURISDICTION OVER THE PERSON OF SUCH PARTIES WITH RESPECT TO, AND OVER THE
SUBJECT MATTER OF, ANY SUCH DISPUTE AND AGREE, TO THE MAXIMUM EXTENT PERMITTED
BY LAW, THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH ANY SUCH
ACTION OR PROCEEDING IN THE MANNER PROVIDED IN SECTION 8, OR IN SUCH OTHER
MANNER AS MAY BE PERMITTED BY LAW, SHALL BE VALID AND SUFFICIENT SERVICE
THEREOF.
14. Waiver of Jury Trial. EACH PARTY HERETO ACKNOWLEDGES AND AGREES
THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT, OR THE BREACH, TERMINATION OR VALIDITY OF THIS AGREEMENT, OR THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) IT UNDERSTANDS
AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) IT MAKES THIS WAIVER
VOLUNTARILY, AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION
14.
15. Amendment; Waivers. No amendment, modification, supplement or
discharge of this Agreement, and no waiver hereunder, shall be valid or binding
unless set forth in writing and duly executed by the party against whom
enforcement of the amendment, modification, supplement, discharge or waiver is
sought (and in the case of the Company approved by resolution of the Board of
Directors of such Company). Any such waiver shall constitute a waiver only with
respect to the specific matter described in such writing and shall in no way
impair the rights of the party or Indemnitee granting such waiver in any other
respect or at any other time. Neither the waiver by any of the parties hereto or
any Indemnitee of a breach of or a default under any of the provisions of this
Agreement, nor the failure by any party hereto or any Indemnitee on one or more
occasions, to enforce any of the provisions of this Agreement or to exercise any
right, powers or privilege hereunder, shall be construed as a waiver of any
other breach or default of a similar nature, or as a waiver of any of such
provisions, rights, power or privileges hereunder. The rights and remedies
herein provided are cumulative and are not exclusive of any rights or remedies
that any party or Indemnitee may otherwise have at law or in equity or
otherwise.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
CDR-COOKIE ACQUISITION, L.L.C.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name:
Title:
CDR-COOKIE ACQUISITION VI-A, L.L.C.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name:
Title:
XXXXXXX, DUBILIER & RICE, INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name:
Title:
COMPLETE BUSINESS SOLUTIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
12
